Karnataka High Court

Jinaga Eshwarappa Since Dead By ... vs Jalagar Basavaraja S/O ... on 12 April, 2023

Bench: K.S.Hemalekha

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                       IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                               DATED THIS THE 12TH DAY OF APRIL, 2023

                                                 BEFORE

                              THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

                             REGULAR SECOND APPEAL NO. 5257 OF 2008

                      BETWEEN

                      1.    GANGAMMA JINAGA
                            61 YEARS, W/O. JINAGA ESHWARAPPA.

                      2.    PAMPAPATHI JINAGA
                            45 YEARS, S/O. JINAGA ESHWARAPPA.

                      3.    MAHANTESH JINAGA
                            43 YEARS, S/O. JINAGA ESHWARAPPA.

                      4.    MALLIKARJUNA JINAGA
                            41 YEARS, S/O. JINAGA ESHWARAPPA.

                            ALL ARE RESIDENTS OF KAMPLI,
                            BELLARY DISTRICT, PIN-583132.

                                                                       ...APPELLANTS


          Digitally
                      (BY SRI. V M SHEELWANT ADV. FOR SRI. N L BATAKURKI., ADVOCATE)
          signed by
          ANNAPURNA
          CHINNAPPA
ANNAPURNA DANDAGAL
CHINNAPPA
DANDAGAL  Location:
          HIGH        AND
          COURT OF
          KARNATAKA
          DHARWAD


                      1.    JALAGAR BASAVARAJA
                            58 YEARS, S/O. GANGAPPA, IV WARD,
                            KAMPLI, BELLARY DIST, PIN-583132.

                            SINCE DECEASED REP. BY HIS LRS

                      1.A   PARVATHI W/O LATE JALAGAR BASAVARAJA
                            AGE:50 YEARS,

                      1.B   JALAGAR THIPPESH S/O LATE JALAGAR BASAVARAJA
                            AGE: 28 YEARS.

                            VIDE ORDER DATED 24.06.2011.
                                -2-




2.   BASAVARAJA KALGUDI
     MAJOR (CORRECT AGE NOT KNOWN)
     S/O KARIBASAPPA KALGUDI,


3.   SOMASEKHARAPPA KALGUDI
     MAJOR (CORRECT AGE NOT KNOWN)
     S/O KARIBASAPPA KALGUDI


4.   NANJUNDESHWARAPPA KALGUDI
     MAJOR (CORRECT AGE NOT KNOWN)
     S/O KARIBASAPPA KALGUDI


     RESIDENTS OF IV WARD, KAMPLI,
     BELLARY DISTRICT, PIN-583132.
                                              ....RESPONDENTS


(BY SMT. VIDYA IYER ADV. FOR SRI. K RAGHAVENDRA RAO ADV. FOR
R-1 (A&B);
R-2 TO R-4 ARE SERVED)

     THIS RSA FILED U/S. 100 CPC. AGAINST THE JUDGEMENT &

DECREE DTD: 21.8.2008 PASSED IN R.A.NO.82/2005 ON THE FILE OF

THE PRL.CIVIL JUDGE (SR.DVN) & JMFC., HOSPET, ALLOWING THE

APPEAL AND REVERSING THE JUDGEMENT AND DECREE DATED

1.8.2005 PASSED IN O.S.NO.195/2001 ON THE FILE OF THE ADDL.

CIVIL JUDGE (JR.DN.) & JMFC., HOSPET.


     THIS APPEAL HAVING BEEN HEARD       AND RESERVED FOR

JUDGMENT, COMING FOR PRONOUNCEMENT OF JUDGMENT THIS DAY,

THIS COURT, DELIVERED THE FOLLOWING:
                               -3-




                         JUDGMENT

The present second appeal by the legal representatives

of defendant No.5 assailing the judgment and decree dated

21.08.2008 in R.A. No.82/2005 on the file of the Principal

Civil Judge (Sr. Dvn.) and JMFC, Hospet reversing the

judgment and decree dated 01.08.2005 in O.S.

No.195/2001 on the file of the Addl. Civil Judge (Jr. Dn) and

JMFC, Hospet.

2. The plaintiff filed suit for permanent injunction

stating that the plaintiff is a tenant of the land bearing

Sy.No.1336A measuring 3.01 acres of Kampli Town, which is

the subject matter of the suit and that though the plaintiff is

a tenant, he did not chose to file Form No.VII under the

Karnataka Land Reforms Act, 1961 seeking for grant of

occupancy rights over the suit schedule property since the

relationship between the plaintiff and defendant Nos.1 to 4

were cordial. That defendant No.5 filed Form No.VII before

the Land Tribunal for grant of occupancy rights in respect of

the suit schedule property and the Land Tribunal by its order

dated 27.08.1979 conferred the occupancy rights in respect

of the suit schedule property in favour of defendant No.5

and defendant No.5 managed to obtain the occupancy

certificate in respect of suit land in favour of defendant

No.5.

3. Further, that on coming to know about the order

in favour of defendant No.5, W.P.No.32732/1994 was

preferred before this Court and this Court vide order dated

09.07.1999 dismissed the writ petition. Aggrieved by which,

the writ appeal was preferred. It is stated that, the plaintiff

filed Form No.7A seeking occupancy rights under Section

77A of the Karnataka Land Reforms Act, 1961 and the same

was rejected by the Assistant Commissioner, Hospet holding

that the occupancy rights in respect of the suit schedule

property has been granted by the Land Tribunal to

defendant No.5. It is stated that the plaintiff is in possession

of the suit schedule property and is residing in the suit land

wherein he has a residential house and the defendants are

trying to evict and dispossess the plaintiff from the suit

schedule property.

4. Pursuant to the suit summons, defendant Nos.1

to 3 and 5 appeared. The suit against defendant No.4 was

dismissed as not pressed. Defendant No.5 filed detailed

written statement and the same was adopted by other

defendants by filing a memo.

5. It is stated by the defendants that the plaintiff is

never in possession over the suit schedule property and by

virtue of the Land Tribunal order conferring the occupancy

rights in favour of defendant No.5 under the Provisions of

the Karnataka Land Reforms Act, defendant No.5 is in actual

possession and enjoyment of the suit schedule property and

sought to dismiss the suit of the plaintiff.

6. The Trial Court on the basis of the pleadings

framed the following issues:

"1. Whether the plaintiff proves that he is in the possession of the suit schedule land?

2. Whether the plaintiff proves the interference by the defendants?

3. To what order or decree the plaintiff is entitled?"

7. In order to substantiate his claim, the plaintiff

examined himself as P.W.1 and two witnesses as P.W.2 and

P.W.3 and got marked documents at Exs.P.1 to P.7. The

defendants on the other hand, did not examine themselves

nor any witness on his behalf nor produced documents in

support of their contentions.

8. The Trial Court on the basis of the pleadings, oral

and documentary evidence held that the plaintiff has failed

to prove the possession over the suit schedule property as

on the date of the suit and the interference by the

defendants and accordingly, dismissed the suit of the

plaintiff.

9. Aggrieved by the judgment and decree of the

Trial Court, the plaintiff preferred Regular Appeal before the

Appellate Court.

10. The first Appellate Court framed the following

points for consideration:

"1. Whether the finding of the trial court that the plaintiff has failed to prove lawful possession of suit schedule property is correct?

2. Whether judgment of the trial court calls for interference?

3. What order?"

11. The first Appellate Court by the impugned

judgment and decree reversed the judgment and decree of

the trial Court decreeing the suit of the plaintiff for

permanent injunction and restrained the defendants or their

men permanently from interfering in the possession and

enjoyment of the suit schedule property by the plaintiff.

12. Aggrieved by which, the present second appeal is

by the legal representatives of defendant No.5.

13. This Court while admitting the appeal, on

11.03.2009 has framed the following substantial questions

of law:

"i) Whether the lower Appellate Court was justified in reversing the judgment and decree passed by the trial Court more particularly, keeping in view the decisions rendered by this Court in W.P.No.32732/94 affirmed in W.A.No.3435/2001.

ii) Whether the Lower Appellate Court was justified in granting the order of injunction in respect of the lands, which were subject matter of the proceedings before the Land Tribunal relating to the provisions of the Karnataka Land Reforms Act.

iii) Whether the Lower Appellate Court was justified in granting injunction in respect of the land in question without entering upon the question relating to possession as on the date of filing of the suit."

14. The learned counsel for the appellants and

learned counsel for the respondent have been heard on the

substantial question of law, the judgment and decree of the

Courts below and the material on record has been carefully

perused.

15. The material facts reveal that defendant No.5-

Jinaga Eshwarappa was a tenant of the suit land bearing

Sy.No.1336A filed an application seeking grant of occupancy

rights under Form No.VII before the Land Tribunal, Hospet

in the year 1977. The Land Tribunal after holding enquiry,

conferred occupancy rights in favour of defendant No.5 and

accordingly, Form No.10 was issued on 25.03.1981. The

plaintiff claims to be a tenant of the suit land, however, the

plaint averments itself states that he had not filed Form

No.VII.

16. The granting of occupancy rights in favour of

defendant No.5 was assailed by the plaintiff in W.P.

No.32732/1994 before this Court, which ultimately came to

be dismissed. Aggrieved by which, W.A. No.3435/2001 filed

before this Court also came to be dismissed. The plaintiff

having lost in the proceedings wherein the Land Tribunal has

conferred occupancy rights in favour of defendant No.5, filed

the present suit seeking for permanent injunction against

defendant No.5-Jinaga Eshwarappa.

17. The Trial Court holding that the plaintiff has failed

to prove the possession of the suit schedule property, in

light of the occupancy certificate having been conferred on

defendant No.5 dismissed the suit of the plaintiff for

permanent injunction. The first Appellate Court while

reversing the judgment and decree of the Trial Court has

gone to the extent of holding that defendant No.5 has got

managed to insert the survey number of the suit schedule

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property in the proceedings before the Land Tribunal after

the judgment of the Land Tribunal.

      18.   The       order         dated       09.07.1999       in

W.P.No.32732/1994          and   order      dated   29.10.2001   in

W.A.No.3435/2001, wherein conferring the occupancy rights

by the Land Tribunal has been confirmed by this Court in

favour of defendant No.5. The plaintiff had sought for grant

of land under Section 77A of the Karnataka Land Reforms

Act, 1961 and Form No.7A was rejected by the Competent

Authority confirmed by this Court in W.P. No.41524/2001 by

its order dated 22.01.2002. The learned counsel for the

appellant/defendant has brought to the notice of this Court

the orders passed in W.P. No.32732/1994, W.A.

No.3435/2001 and W.P. No.41524/2001.

19. The plaintiff having challenged the order dated

27.08.1979 conferring the occupancy rights in favour of

defendant No.5 has thereafter filed the present suit seeking

for permanent injunction against defendant No.5. The suit

of the plaintiff came to be dismissed in appeal filed by the

plaintiff, the plaintiff sought to contend that the order of

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grant dated 27.08.1979 excludes the lands covered under

Sy.No.1336A, Kampli Village. The said interpretation or the

contention of the plaintiff was accepted in the appeal and an

order of injunction was granted holding that there was no

conferring of occupancy rights on the land in Sy.No.1336A

of Kampli Village. The first Appellate Court has literally sat

on the order of the Land Tribunal interpreting that defendant

No.5 has got the survey number entered and the Land

Tribunal has committed the mistake. At this stage, it is

relevant to consider the order passed by the Land Tribunal

and which is reproduced as under:

"27/8/79

Case called parties present.

The Respondents admit applicants claim. No objection is filed. The order passed granting the applicant. Applicant is entitled to be registered as occupant of S.Nos.518A, 531/b3, 532A, 532C, 533, 534A, 534C, 521, C and 1336A situated in Muddalapura except S.No.1336 A which is situated in Kampli of Hospet Taluk."

20. Failing in his attempt in challenging the

occupancy rights conferred on defendant No.5 another

frivolous attempt was made by the plaintiff in

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W.P.No.72473/2012 stating that the order conferring the

occupancy rights dated 27.08.1979 was passed behind the

back of the plaintiff. The Co-Ordinate Bench of this Court

while considering the said writ petition has passed an order

holding that the interpretation of the petitioner/plaintiff that

the order does not include Sy.No.1336A is unsustainable.

The relevant portion of the order is at paragraph Nos.15 to

18 as under:

"15. It has to be kept in mind that the order dated 27.08.1979 is handwritten and not written by a person who is highly proficient in English. The meaning and purport of the language used is what is to be considered and the subsequent actions taken thereto would have to be considered to arrive at true meaning. The extract would indicate that various survey numbers and Sy.No.1336 situate in Muddalapura except 1336A which is situate in Kampli village, Hospet taluk. If the contention of the learned counsel for the petitioner is to be accepted, there would have been no mention of Sy.No.1336A before "situated at Muddalapura since admittedly Sy.No.1336A is not situated in Muddalapura but is situated in Kampli Village. The sentence should also have stopped at except Sy.No.1336-A. The sentence, however, continues to say which is situate in Kampli village, Hospet taluk. The said addition would mean and

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include the differentiation sought to be made out by the Land Tribunal as regards the allocation of the proposed lands since one set of the land is situate in Muddalapura village and the sole property covered in Sy.No.1336A was situate in Kampil village, Hospet taluk. Further more, the reason for grant of land in Muddalapura will also apply to the land in Kamli since no objection have been filed by the land owners for Kamli land also. Therefore, even considered otherwise there was no reason for non granting of the land in Kamli to Jalagar Basavaraj. Hence, the claim of the petitioners that the said land has not been granted and are excluded is not sustainable.

16. In this regard the contention of learned counsel for the respondents No.9 to 12 merits consideration. In that, according to him, the understanding of the parties through out was that Sy.No.1336-A had been granted and it was this grant which had been challenged by Jalagar Basavaraja during his lifetime in W.P.No.32732/1994.

17. A perusal of the original records produced by learned HCGP also indicates that Sy.No.1336-A finds reference in all subsequent documents relating to the passing of the grant order, issuance of saguvali chit, as also to make changes relating to the minor grantees when they attained majority. Thus, the Land Tribunal and the revenue, as also the parties concerned with the matter have always dealt with the issue as if the same had been granted. Now at this belated stage,

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after a period of 41 years, to take up a grammatical interpretation of the order passed on 27.08.1979 is impermissible. The same is also not supported by any documents or facts on record. The interpretation now sought to be made is unsustainable. Hence, the writ petition deserves to be dismissed.

18. Accordingly, the writ petition is dismissed."

(Emphasis supplied)

21. In light of the order in the aforementioned writ

petition, the interpretation of the respondent/plaintiff that

the occupancy rights is not conferred in Sy.No.1336A in

favour of defendant No.5 has been held against the plaintiff

holding that the occupancy rights have been conferred in

respect of the suit schedule property in favour of defendant

No.5.

22. Learned counsel for the respondent/plaintiff

during the course of the argument sought to contend that

the plaintiff is in possession of the suit land even as on

today and the electricity bill and the aadhar card pertains to

the suit schedule property, which evidently according to the

learned counsel establishes the fact that the

respondent/plaintiff is in possession of the suit schedule

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property. This contention of the learned counsel for the

respondent/plaintiff is not sustainable since the Tribunal

having jurisdiction has conferred the occupancy rights in

favour of defendant No.5 while considering Form No.VII and

the Civil Court lacks jurisdiction to decide the question of

tenancy.

23. The perusal of the judgment of the first Appellate

Court makes it evident that the first Appellate Court has

gone beyond the Civil Court's jurisdiction to hold that there

is a mistake committed by the Land Tribunal while

conferring occupancy rights in favour of defendant No.5. The

Civil Court cannot find fault with the order of the Land

Tribunal, the jurisdiction of which is under the special

statute, the Tribunal having jurisdiction to go into all the

questions bearing upon whether the applicant is a tenant or

not for the purpose of deciding the claim of occupancy

rights, the Co-Ordinate Bench of this Court in the case of Sri

Parushuram Nemani Kuduchakar Vs. Smt. Shantabai

Ramachandra reported in ILR 2004 KAR 3355, at

paragraph Nos.25 and 28 has held as under:

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"25. Therefore, the Tribunal has the exclusive jurisdiction to decide the question of tenancy and the question whether the tenancy claimed belongs exclusively to an individual or it belongs to a joint family. The Civil Court's jurisdiction to decide these questions is completely barred. The question whether a particular property is a joint family property or self acquisition of a member of the joint family is a matter which exclusively falls within the jurisdiction of a Civil Court. The Tribunal has no jurisdiction to go into and decide the said question. In a suit for partition it is always open to a party to the suit to contend that a particular item of the property is not a joint family property but it is a self acquired property. The Civil Court has the jurisdiction to decide the said question and if the property is held to be a self acquired property no decree for partition shall be granted. If the subject matter of such suit for partition is a land in respect of which occupancy rights has been granted under the provisions of the Karnataka Land Reforms Act and if partition of the said property is sought for in the suit, the Civil Court has the jurisdiction to go into the question whether the said property is a joint family property or not. If in such proceedings it is contended by the person to whom occupancy rights has been granted that it is his exclusive property and not a joint family property. Civil Court certainly has the jurisdiction to go into the question whether the said property is a joint family property or the self

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acquisition or separate property of the persons in whose favour occupancy rights has been granted. Merely because it is contended in such a suit that it is a self acquired property of the person in whose favour the occupancy rights has been granted, the Civil Court's jurisdiction to entertain a suit in respect of the said property is not ousted or excluded. While grating the occupancy rights if the Tribunal has decided the question whether the person claiming that occupancy rights is claiming it on behalf of the joint family or exclusively for himself, then, on a suit for partition the Civil Court cannot sit in judgment over the said finding recorded by the Land Tribunal nor it can adjudicate the said controversy afresh ignoring the finding of the Tribunal. In such a event the Civil Court is bound to accept the finding of the Tribunal and give effect to the same acting on the said finding. If the Tribunal in such proceedings has recorded a finding that it is the self acquisition or exclusive right of the person whom the occupancy rights is granted rejecting the claim of the rival claimant that it is a joint family tenancy that by itself would not oust the jurisdiction of Civil Court to entertain a suit for partition. If a suit is filed after entertaining the suit the Court may decline to grant relief to the plaintiff who is claiming a share in the said property on the ground that it is not a joint family property but it is the exclusive property of the person in whose favour the occupancy rights has been granted. If the Tribunal has not gone into the said question and has granted occupancy rights in a suit

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filed for partition in respect of the land it is open to the Civil Court to go into the question whether the said property is a joint family property or not.

x x x

28. The legal position that emerges from the said provisions, decisions and discussion be stated as under:-

(i) The Tribunal alone has the exclusive jurisdiction to decide the question whether a person is a tenant or not of the land in question, and the Civil Court has no jurisdiction or power to decide the same.

(ii) If a rival claim is made before Land Reforms Tribunal one party contending that the tenancy rights exclusively belongs to himself and another contending that tenancy rights belonging to the joint family and therefore all of them are entitled to grant of occupancy rights, the Tribunal has the jurisdiction to go into the question whether tenancy rights claimed belongs exclusively to one of the member of the joint family or it belongs to the joint family, as it is incidental and necessary to decide the question of grant of occupancy rights.

(iii) If before grant of occupancy rights the Tribunal adjudicates the rival claims and holds that the tenancy pleaded exclusively belongs to the applicant in whose favour the occupancy right is granted and it does not belong to the joint family, the parties have to challenge

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the said order under the provisions of the Land Reforms Act only and the Civil Court has no jurisdiction to sit in judgment over the said decision of the Land Tribunal nor can ignore the said finding and record a finding contrary to the one recorded by the Tribunal in a suit for partition.

(iv) If tenancy is not disputed or rival claims by members of the joint family are not put forth and agitated, after grant of occupancy rights by the Tribunal, Civil Court can entertain a suit for partition in respect of such property, decide whether such property is a joint family property or the separate property of the applicant to whom the occupancy right is granted, and grant a decree for partition.

(v) If the question of tenancy belonging to the joint family is raised before the Land Tribunal and the Tribunal does not decide the said question one way or other and leaves it to be decided by Civil Court; Civil Court is not precluded from going into the said question after the tenancy rights has been granted in favour of one of the claimants, while considering the relief of partition.

(vi) The Civil Court alone has the jurisdiction to entertain a suit for partition and to grant the relief of partition and the Tribunal has no jurisdiction to entertain and grant a decree for partition."